Senior Advocate of Nigeria, Jibrin Okutepa, has faulted the Imo State Attorney-General’s objection to the National Judicial Council’s (NJC) intervention in the appointment of a substantive Chief Judge for the state, insisting that the council acted within its constitutional powers.
Okutepa, in a statement posted on his X account on Saturday, November 7, 2026, described the Attorney-General’s position as misconceived, arguing that the NJC was right to request the inclusion of Justice Ijeoma Agugua, the state’s most senior High Court judge and Acting Chief Judge, among candidates being considered for the position.
He explained that the NJC’s request did not amount to an automatic endorsement of Justice Agugua but was intended to ensure that she was given an opportunity to be assessed alongside other eligible candidates.
“The NJC’s published decision requested the inclusion of Hon. Justice Ijeoma Agugua, the State’s most senior High Court judge and Acting Chief Judge, among candidates for consideration. Inclusion affords her an opportunity to be assessed; it does not predetermine her appointment,” he said.
The senior lawyer maintained that the appointment process involved constitutional responsibilities shared among the State Judicial Service Commission, the NJC, the state governor and the House of Assembly.
Citing Paragraph 6(a), Part II of the Third Schedule to the Constitution, Okutepa noted that the State Judicial Service Commission was empowered to advise the NJC on suitable candidates, while Paragraph 21(c), Part I authorised the NJC to recommend a candidate from the names submitted to it.
He added that Section 271(1) of the Constitution empowered the governor to appoint a Chief Judge on the recommendation of the NJC, subject to confirmation by the State House of Assembly.
“Each institution must exercise its responsibility without frustrating the responsibilities of the others,” he stressed.
Addressing the Attorney-General’s reported reliance on Section 202 of the Constitution to argue that the Judicial Service Commission was independent of external direction, Okutepa said the provision should not be interpreted as granting the commission unrestricted powers to prevent the NJC from considering an eligible candidate.
“That provision deserves respect, but its precise language concerns the exercise of powers to make appointments and exercise disciplinary control. Advising the NJC on candidates for Chief Judge forms part of a shared constitutional process,” he argued.
“In my considered view, section 202 cannot simply be treated as giving the Commission an unrestricted veto over meaningful consideration by the NJC.”
Okutepa also pointed to the NJC’s published appointment guidelines, which identify seniority at the Bar or Bench as one of the factors to be considered alongside professional competence, legal knowledge and other relevant criteria.
He argued that the seniority of a candidate deserved serious consideration and that any decision to exclude the most senior judge should be supported by a clear explanation based on applicable criteria.
“Where the most senior judge is omitted, the proper response should be a reasoned explanation supported by the applicable criteria. Institutional independence cannot justify arbitrary exclusion,” he said.
However, the SAN cautioned against interpreting the law as conferring an automatic right to substantive appointment on the most senior judge, explaining that Section 271(4) only expressly provides for the most senior High Court judge to perform the functions of Chief Judge under stipulated circumstances.
“The provisions governing substantive appointment do not confer the same automatic entitlement. It would therefore overstate the law to say that the most senior judge can never lawfully be excluded, whatever the circumstances,” he said.
He, however, maintained that no constitutional provision authorised the exclusion of the most senior judge merely to bypass seniority or deny the judge fair consideration.
Okutepa further faulted the Imo State Attorney-General for allegedly failing to identify any law empowering the State Judicial Service Commission to exclude Justice Agugua’s name from the list of candidates to be submitted to the NJC.
“The Hon AG of Imo State did not cite any law that permits the Imo State Judicial Service Commission to exclude the name of most senior judge in the list to be submitted to NJC,” he stated.
Describing the NJC’s intervention as a defensible measure to ensure a credible selection process, Okutepa said the commission retained the responsibility to assess the suitability of candidates and communicate any substantiated reservations, while the NJC was equally required to exercise independent judgment before making its recommendation.
He urged the Attorney-General to support a transparent process that would allow Justice Agugua’s record to be assessed alongside those of other eligible candidates, insisting that any lawful concerns about her suitability should be presented and fairly examined.
“The office of Chief Judge is a public trust, and its occupants must emerge through a process that commands confidence in the independence, integrity and fairness of the judiciary,” he said.
He concluded that the exclusion of Justice Agugua’s name without a valid legal basis was unjustifiable, declaring: “The whimsical exclusion of her name has no support of law. NJC is right.”
